Malik & Ors, R (On the Application Of) v Manchester and Salford Magistrates' Court & Ors

A final order may be varied retrospectively where the circumstances justify relief, although finality remains important. The court should distinguish an application addressing a short procedural default from an attempt to reopen concluded litigation or obtain a second opportunity to advance a case. Relevant considerations include the nature of the order, the length and explanation of the delay, prejudice, and the interests of justice. A one-day failure caused by a miscalculation may justify relief where variation enables a substantive application to be determined on its merits. The court should nevertheless expect careful compliance with time limits and proper notice of any application to vary.

The claimants challenged search warrants issued under Police and Criminal Evidence Act 1984. The warrants were quashed, and the Home Secretary was required either to return seized property within 56 days or apply to the Crown Court under section 59 of the Criminal Justice and Police Act 2001.

The section 59 application was filed one day late. The Home Secretary later applied retrospectively to vary the order, initially without effective notice to the claimants. The issue was whether the Divisional Court should extend the time limit and permit the section 59 application to proceed.

1. Application granted. The court varied the order by extending the period for making the section 59 application from 56 to 58 days. There was no order as to costs.
2. The authorities concerning variation of final orders did not prevent relief. The principle of finality was important, but this was materially different from an attempt to reopen concluded litigation or obtain a second bite at the cherry. The failure was one day late and resulted from a miscalculation of the time running from the date judgment was pronounced rather than the date the order was sealed.
3. Tibbles v SIG plc [2012] 1 WLR 2591 and Thevarajah v Riordan [2016] 1 WLR 76 were distinguished. Those cases involved attempts to undo the effect of earlier decisions after substantial procedural developments, rather than a short delay in making an application required by the order.
4. The Panesar/Windsor litigation was also materially different. In that litigation the evidence supporting the warrants remained inadequate at successive stages. Here, the warrants had been quashed by agreement, there had been no bad faith, and the dispute concerned the procedure by which the section 59 application should be determined.
5. The court considered that the section 59 application should be determined on a reasoned and particularised application, to which the claimants could respond, so that the Crown Court could decide the merits. The previous failures in conduct were criticised, particularly the lack of timely compliance and effective notification, but relief was nevertheless justified.

The judgment concerned an application to vary an earlier order of the Divisional Court made on 29 November 2016. That earlier order had quashed the search warrants and imposed the 56-day requirement. The present court granted retrospective variation of that requirement.